Citation Nr: 1035252
Decision Date: 09/17/10 Archive Date: 09/21/10
DOCKET NO. 07-25 623 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for bladder cancer.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
C.A. Skow, Counsel
INTRODUCTION
The Veteran served on active duty from August 1964 to May 1992.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Portland, Oregon.
The issue of service connection for prostate cancer has
been raised by the record, but has not been adjudicated by
the Agency of Original Jurisdiction (AOJ). Therefore, the
Board does not have jurisdiction over it, and it is
referred to the AOJ for appropriate action.
FINDING OF FACT
Bladder cancer has been related to the positive findings of
leukocytes shown on urinalysis upon separation in February 1992.
CONCLUSION OF LAW
Bladder cancer was incurred in service. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran contends that he has bladder cancer that is due to
his service. The Veteran's February 1992 separation examination
shows that the results of his urinalysis included positive
findings of leukocytes. Leukocytes are simply white blood cells,
a type of cell normally present in the circulating blood. They
are often a sign of infection and inflammation. See "Urine
Test." WebMD. 18 Sept. 2008. Web. 7 Sept. 2010 (www.webmd.com/a-
to-z-guides/urine-test). See Van Winkle v. Nicholson, WL 1662344
for a definition of leukocytes (not a precedent decision).
Private medical records of urologist Dr. Fleming, dated November
and December 2004, show a diagnosis of bladder cancer and noted
that the Veteran complained of gross hematuria, the presence of
blood or red blood cells in the urine.
A March 2009 letter from Dr. Fleming reflects that the appellant
had been under his care for the past 5 years, and that he was
initially diagnosed with a high grade early invasive bladder
cancer in a bladder diverticulum. He reported that the etiology
was "due to some previous exposure of agents which would cause
the development of bladder cancer" and that this, "combined
with his urinary stasis in his bladder diverticulum undoubtedly
resulted in this condition."
Given these facts, in April 2009, the Board remanded this case
for an opinion as to whether the finding of leukocytes on
urinalysis at separation in February 1992 is related to the post
service diagnosis for bladder cancer in 2004.
Thereafter, the appellant's private urologist, Dr. Fleming,
responded to the Board's remand questions. He stated that he did
not believe that it was as likely as not that bladder cancer was
present in service. However, he further stated that he believed
that "the diverticulum and later cancer development result[ed]
from chronic inflammation-thus WBC [white blood cells] in
urine."
Similarly, a VA urology staff physician opined in December 2009
that bladder cancer was not present in service-including at the
time of the 1992 separation findings for leukocytes. The
physician noted that, although leukocytes can indicate chronic
inflammation, it is unlikely that leukocytes alone indicate
bladder carcinoma-and that usually there are other indicators
such as blood in the urine, which was not shown on separation
examination in 1992. However, the physician further opined that
"it is unlikely the bladder cancer that was diagnosed in 2004
had any relationship to the leukocytes found in the 1992
urinalysis at the time of the veteran's separation from the
service." The Board observes that no rationale for that opinion
was provided.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against a
claim, in which case, the claim is denied. Gilbert v. Derwinski,
1 Vet. App. 49 (1990). The Secretary shall consider all
information and lay and medical evidence of record in a case
before the Secretary with respect to benefits under laws
administered by the Secretary. When there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant. 38 U.S.C.A. §
5107 (West 2002).
In this case, there is not an approximate balance of positive and
negative evidence. The medical opinion of Dr. Fleming weighs in
favor of the claim, whereas the VA medical opinion weighs against
the claim. The Board observes that both medical opinions were
prepared by physicians working in the field of urology, although
Dr. Fleming is a urologist with specialized training in the field
of urology and has been the Veteran's treating physician since
his initial diagnosis with bladder cancer. Dr. Fleming gave a
short rationale for his opinion, which was essentially that the
leukocytes shown on separation examination in February 1992
caused inflammation and that chronic inflammation caused the
development of bladder cancer. The VA physician, by contrast,
gave merely a conclusory opinion that it is unlikely the bladder
cancer diagnosed in 2004 had any relationship to the leukocytes
shown on service separation examination in 1992. Notably, the VA
physician had the benefit of review of the Veteran's entire
claims folder to include his service treatment records. However,
the VA examiner provided no reasoning as to why the leukocytes
were not indicative of chronic inflammation that eventually
resulted in bladder cancer.
On balance, the evidence supports the claim. The private medical
opinion provides reasoning and establishes why a remote post
service diagnosis is related to in-service findings. The VA
document does not provide a reasoned basis for refuting the
private opinion. Therefore, the claim is granted.
In view of the favorable decision above, a discussion of VA's
duties under the Veterans Claims Assistance Act of 2000 (VCAA) is
not necessary as any failure on VA's part is rendered moot by the
grant above. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107
and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a).
ORDER
Service connection for bladder cancer is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs